DCPP VS. N.B., B.S., E.R. AND T.J.D. IN THE MATTER OF T.B. AND E.R.(FN-04-343-15, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5159-14T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

N.B.,

Defendant-Appellant,

and

B.S., E.R. and T.J.D.,

Defendants.

________________________________

IN THE MATTER OF T.B. and E.R.,

Minors.

________________________________

Submitted October 6, 2016 – Decided May 10, 2017

Before Judges Alvarez and Accurso.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden

County, Docket No. FN-04-343-15.

Joseph E. Krakora, Public Defender, attorney

for appellant (Joan T. Buckley, Designated

Counsel, on the brief).

Christopher S. Porrino, Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

William T. Harvey, Jr., Deputy Attorney

General, on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor T.B. (Cory H.

Cassar, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor E.R. (Melissa

R. Vance, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

Defendant N.B. appeals from a March 3, 2015 order of the

Family Part, now final, that she abused and neglected her

daughter E.R. (Elena)1 by excessive corporal punishment,

inflicted two weeks shy of her eighth birthday, in violation of

N.J.S.A. 9:6-8.21c. The fact finding hearing was conducted "on

the papers."

We agree with the Division of Child Protection and

Permanency and the Law Guardian2 that there was evidence in the

1 We refer to the children by fictitious names in order to

protect their privacy.

2 N.B. is also the mother of a son, T.B. (Tab), eleven years old

at the time of this incident. The children are represented by

separate counsel here. Although the Division did not establish

(continued)

2 A-5159-14T3

record suggesting excessive use of corporal punishment. There

was also, however, evidence that this was an isolated instance,

as the Division had failed to substantiate the prior reports of

excessive punishment, and that Elena had significant behavioral

problems, and indeed, that at the time of this incident was in

the midst of an intense tantrum. Because the record did not

permit a finding of per se excessive corporal punishment, an

examination of the circumstances facing N.B. was critical to

determine whether her striking Elena several times with an open

hand amounted to abuse or neglect. See Dep't of Children &

Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super.

504, 512 (App. Div. 2010), certif. dismissed as improvidently

granted, 208 N.J. 355 (2011). As the trial court failed to

adequately address those circumstances on this truncated record,

we vacate the order and remand for further fact finding.

Although the record evidence here is scant, consisting of

only the Division's investigation summary and expert report,

(continued)

allegations of physical abuse of Tab, and the court made no

findings as to the boy, the caption encompassed both children

and the order refers to child(ren). The Law Guardian

representing Tab on this appeal asserts the Division did not

establish that Tab was an abused or neglected child. Because we

are remanding this matter for further fact finding, we direct

the trial court to clarify its findings as to Tab, reopening the

record if necessary. References to the Law Guardian in the text

refer to counsel for Elena.

3 A-5159-14T3

both redacted to eliminate hearsay statements by Elena's

grandmother, and six photographs of the child's injuries, we

summarize the salient points. N.B. had her first child, Tab,

three months after her sixteenth birthday. Elena was born when

N.B. was nineteen. The children have different fathers.

Elena's father was in prison in Pennsylvania at the time of this

incident, and N.B. was living with a man, B.S., whom the

Division suspected of domestic violence.3 He was apparently

recently released from jail and not employed at the time of this

incident. N.B. supported the family working full-time in

housekeeping at a local hotel.

Elena's paternal grandmother called the Camden County

police on November 26, 2014, to report scratches and bruises she

found on Elena, including one near her eye. The police came to

the home, took a statement, and confirmed seeing several small

bruises and scratches on the child.4 The second-grader claimed

3 When the Division interviewed N.B., she had a black eye, which

she told the worker she got when she "ran into something at

work." N.B. declined the worker's request to confirm the report

with her employer, and reported B.S. "was mad that she got the

black eye because he does not like seeing her hurt." When the

worker asked B.S. about the black eye, he asked "what black

eye." He told the worker he thought N.B. "was just wearing

make-up on one side of her face."

4 The police report, which the Division withdrew in the face of

objections by defense counsel and thus was not admitted in

(continued)

4 A-5159-14T3

"she was put on punishment" the day before for not putting on

play clothes when she got home from school. She reported that

B.S. told her to change out of her uniform, but she wanted to

get something to drink first. When she went to get her snack,

she claimed B.S. smacked her in the face, and that both he and

her mother hit her with an open hand, causing her to fall to the

floor, after which her mother kicked her.

Tab, then in the sixth grade, claimed when he was

interviewed by the Division that B.S. told Elena to put on her

play clothes, but she was not listening. Instead, she went into

the refrigerator to get something. B.S. put Elena "on

punishment" and told her to go to her room. According to Tab,

once in her room, Elena was crying and pulled the sheets off her

bed and tossed her clothes around the room. Tab claimed his

mother spanked Elena "on her arm and butt" using her hand, and

that B.S. had not hit Elena. He denied his mother and B.S.

regularly punished the children physically, instead claiming

they were usually sent to their rooms when they misbehaved.

(continued)

evidence, reflects that both N.B. and B.S. were charged on a

complaint summons with simple assault. Defense counsel asserted

in the course of argument at the fact finding hearing, that

their clients were not arrested. There is nothing in the record

to establish whether defendants were or were not charged and, if

so, the disposition of those charges.

5 A-5159-14T3

B.S.'s and N.B.'s accounts of the incident largely tracked

Tab's. B.S. claimed the children knew they were to change out

of their school clothes as soon as they got home from school,

before doing anything else. Elena wanted to get something out

of the kitchen before changing her clothes, and he told her to

go to her room. He told the worker Elena "started flipping out"

and N.B. hit her on the butt with her hand. He denied ever

physically disciplining either child and denied any physical

violence in the home. B.S. also told the worker that Elena's

"grandmother has been trying to get her."

N.B. told the worker that Elena was supposed to take off

her uniform as soon as she got home from school. Elena did not

want to do that and went upstairs whining and had a tantrum.

N.B. admitted spanking Elena on her "butt and arm" with an open

hand but denied hitting her in the face. According to N.B.,

Elena was "throwing her body all over the place" while N.B. was

disciplining her. Although acknowledging that Elena's thrashing

about may have resulted in the mark on her face, N.B claimed the

scratch was unintentional. She also claimed not to have noticed

the scratch at the time. N.B. told the worker that after the

spanking, Elena calmed down and took a shower. Afterwards, the

child ate her dinner and went to bed. N.B. denied that B.S. had

6 A-5159-14T3

hit Elena, and also claimed she was the only one to discipline

her.

The tantrum that apparently precipitated this action was

not the only one documented in the record. The Division removed

both children after the police responded to the grandmother's

home. When the worker advised Elena that she would not be able

to stay with her grandmother, the child became severely upset,

stripping off her seatbelt and punching the inside of the car.

The worker had to pull off the road into an empty parking lot to

get the situation under control.5 About a month later, when the

children were still in placement, Elena's school had to

transport her to Cooper University Hospital by ambulance for

crisis screening. The school reported Elena was exhibiting

"extreme aggression," spitting on and hitting staff. She had

also tried to run out of the building. The attending doctor

advised that Elena was exhibiting behavioral and not mental

health issues and recommended that she receive ongoing therapy

and meet with a psychiatrist.

5 When the worker facilitated a call between Elena and her mother

in an effort to calm the child, B.S. got on the phone and told

her "this is what happens when you run your mouth." He also

told the child her grandmother "was trying to brainwash her and

this is the shit that happens." When Tab later wanted to speak

to his mother, the worker arranged the call but told N.B. that

B.S. could not speak to Tab as he had spoken to Elena.

7 A-5159-14T3

Tab had been suspended from school for fighting the week

before Elena was taken for crisis screening. His school advised

he often gets into verbal and physical disputes with classmates

and that he initiated the contact. Tab also had a disturbing

history of acting out sexually, which predated the incident at

issue here by two years, including a report of inappropriate

contact with his sister in 2012. Following a report in 2013

that Tab had penetrated another boy with his penis, the Division

had Tab evaluated at the CARES Institute. CARES recommended the

boy have a psychological evaluation to determine if he was a

risk to other children. The Division closed that case at intake

and advised N.B. to follow-up with a psychological evaluation of

her son.

At the fact finding hearing, the parties agreed to proceed

"on the papers." The Division offered the Division's

investigation summary, its expert's report, six photographs of

Elena, along with a stipulation that the photographs accurately

reflect the bruises and scratches to the child at the time the

photographs were taken, and the police report. In a protracted

colloquy, counsel for defendants objected to the admission of

the grandmother's hearsay statements embedded in the

investigation summary and the expert's report, as well as to the

entirety of the police report. The judge admitted the

8 A-5159-14T3

investigation summary and the expert report, redacting the

grandmother's statements and the Division withdrew the police

report.

After hearing the argument of all counsel, the judge

determined the Division had failed to establish its case as to

B.S., terming the evidence "weak and inconsistent." As to N.B.,

however, the judge found,

number one, we have an expert report that

indicates that there's excessive corporal

punishment. It's described here in a full

appropriate report. The court adopts the

findings [in the report] as uncontroverted.

. . . [C]learly . . . they are of the

opinion that there was excessive corporal

punishment here. And the court is satisfied

that the CARES report is substantially

relevant to the court's findings.

Turning to the photographs in evidence, the judge found

marks on the child's arm, back and a "scratch that's basically

been stipulated to[,] [which] is maybe an inch from the child's

eye." Stating "the greatest injury of concern to this court is

the injury on the face," the judge noted that N.B., while

disavowing any purposeful intent to inflict the scratch, "does

indicate that she may have caused that injury." The judge found

that even accepting N.B.'s account, her "description here would

formulate a finding under the gross negligence determination;

gross[] negligence would cause that type of injury."

9 A-5159-14T3

Acknowledging that N.B. "had a difficult time in imposing

physical discipline on the child when the child was not

cooperating with the physical discipline," the judge allowed

that "may have caused injuries other than where she intended the

injuries to go." Nevertheless, the judge concluded:

Well the problem here is that when the

child is not cooperating, and the child is

out of control, this may not be the time to

be spanking the child. The injuries are on

the arm and that's pretty far from the area

that usually is considered an area where

people spank someone. Either the child was

completely out of control and [N.B.] was

just wildly imposing her hands to discipline

the child. This I find not to be an

appropriate time to discipline if the child

is that far out of control where [N.B.]

can't even impose any physical discipline in

an appropriate area. Again, it's the lower

back but clearly not anyplace else. And

there are two clear scratches, or it almost

looks like a belt on the child's, I guess

that's the left arm.[6] And then there is a

bruise on the right arm, and again another

photograph that seems to be another bruise

on the right arm. I'm not sure about that

one photograph, but clearly the court sees

bruises on the child's right arm, the back,

the left hand, and the child's face,

approximately an inch from the eye.

If you are disciplining the child and

have to do that and cause an injury an inch

from the eye, I find that is clearly a

gross[ly] negligent act, an act that is well

6 There was no suggestion anywhere in the record that N.B. had

used a belt to strike Elena.

10 A-5159-14T3

within the statute of N.J.S.A. 9:6-

8.21c(4)(b). And the cite for the closed

fist on the shoulder case, K.A., that's 413

N.J. Super. at page 506. The court finds

that these are the relevant case law7 and

makes a finding that this is abuse and

neglect under Title 9 and the court will

sustain that finding with respect to [N.B.]

at this time.

A disposition hearing was conducted immediately after the

conclusion of the fact finding hearing, and the children were

returned to N.B.'s custody with services to be put in place.

The Title 9 action was closed three months later, on June 10,

2015, a little over six months after the initial referral,

pursuant to a consent order reciting "conditions [had] been

remediated."

Our role in reviewing a decision that a parent abused or

neglected a child is to determine whether the trial court's

findings in support of that decision are grounded in adequate,

substantial, and credible evidence in the record. N.J. Div. of

Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App.

Div. 2002). Title 9 defines an "abused or neglected child" as

including

a child whose physical, mental, or emotional

condition has been impaired or is in

7 Earlier in its opinion, the trial court distinguished this

matter from N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17 (2011), on the basis of Elena's age.

11 A-5159-14T3

imminent danger of becoming impaired as the

result of the failure of his parent or

guardian, as herein defined, to exercise a

minimum degree of care . . . (b) in

providing the child with proper supervision

or guardianship, by unreasonably inflicting

or allowing to be inflicted harm, or

substantial risk thereof, including

the infliction of excessive corporal

punishment . . . .

[N.J.S.A. 9:6-8.21c(4)(b).]

Although "excessive corporal punishment" is not defined,

the Supreme Court has noted that "by qualifying the prohibition

with the term, 'excessive,' the statutory language plainly

recognizes the need for some parental autonomy in the child-

rearing dynamic that, of necessity, may involve the need for

punishment." N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 36 (2011). Determining when corporal punishment has

become "excessive" is often a difficult and exquisitely fact-

sensitive endeavor. Id. at 33.

We have not hesitated to acknowledge that even an isolated

parental act that results in a child suffering a fracture, a

serious laceration, or any other injury necessitating medical

intervention could readily constitute excessive corporal

punishment. K.A., supra, 413 N.J. Super. at 511. In the

absence of such per se examples of excessiveness, however, an

examination of all of the circumstances confronting the parent

12 A-5159-14T3

is imperative, especially if the incident appears an isolated

one. Id. at 511-13.

N.B. alleges the trial judge failed to consider the

totality of the circumstances attendant to her spanking Elena in

the midst of the child's tantrum, including that "the marks on

[Elena] were superficial and required no medical attention; that

[N.B.] used her plain open hand to spank; that this was an

isolated incident, with no prior substantiated Division

referrals; and it was [Elena's paternal grandmother], a person

having a strained relationship with [N.B.], who initiated the

Division referral." We agree that all of these considerations

were relevant in considering whether N.B. employed excessive

corporal punishment in disciplining Elena on November 25, 2014,

and, judging from his opinion from the bench, that the judge

appears not to have weighed any of them. Accordingly, because

Elena's injuries did not constitute a per se example of

excessive corporal punishment, and the judge did not identify

and weigh the importance of the surrounding circumstances, we

agree with N.B. that the order must be vacated. The point she

raises about Elena's grandmother, however, requires some

additional comment.

In a Title 9 case, the Division has to "prove that the

child is 'abused or neglected' by a preponderance of the

13 A-5159-14T3

evidence, and only through the admission of 'competent, material

and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting

N.J.S.A. 9:6-8.46b). By virtue of the governing statute,

however, such evidence may include "any writing, record or

photograph . . . made as a memorandum or record of any

condition, act, transaction, occurrence or event relating to a

child in an abuse or neglect proceeding of any hospital or any

other public or private institution or agency," provided it

meets the specified admissibility requirements. N.J.S.A. 9:6-

8.46a(3); see P.W.R., supra, 205 N.J. at 32.

The statute further provides that "previous statements made

by the child relating to any allegations of abuse or neglect

shall be admissible in evidence; provided, however, that no such

statement, if uncorroborated, shall be sufficient to make a fact

finding of abuse or neglect." N.J.S.A. 9:6-8.46a(4). We have

held the "corroborative evidence need not relate directly to the

alleged abuser, it need only provide support for the out-of-

court statements." Z.P.R., supra, 351 N.J. Super. at 436.

Rule 5:12-4(d) permits the Division "to submit into

evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by

staff personnel or professional consultants." Rule 803(c)(6) in

turn, is subject to the constraints of N.J.R.E. 808 mandating

the exclusion of certain complex expert opinions contained in

14 A-5159-14T3

written reports unless the trial judge finds the circumstances

involved in the making of the report and the likelihood of

accuracy of the opinion tend to establish its trustworthiness.

See N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super.

118, 129-30 (App. Div. 2010). Conclusions drawn from the facts

included in reports by the Division's staff or professional

consultants "shall be treated as prima facie evidence, subject

to rebuttal." R. 5:12-4(d).

The Division, and ultimately the judge, relied heavily on

the report of Dr. Martin Finkel, Professor of Pediatrics and

Medical Director of Rowan University's CARES Institute, to

establish that Elena was an abused and neglected child. Dr.

Finkel concluded that "[t]he historical information that has

been provided clearly details [Elena] experiencing inappropriate

and excessive physical discipline, as she described, by her

mother, mom's boyfriend [B.S.], [the maternal] grandma and the

maternal grandmother's husband, the step-grandfather." The

problem is that Dr. Finkel did not testify, and his report was

admitted only after redacting the hearsay statements attributed

to Elena's paternal grandmother.

Those redactions gutted the report. Dr. Finkel does not

reference having reviewed any documents in connection with his

examination of Elena, including the photographs of the child

15 A-5159-14T3

admitted in evidence.8 What the doctor knew of Elena and her

family was drawn entirely from the history provided by the

paternal grandmother and from the child's statements to him in

the course of his examination. The statements attributed to the

grandmother in the report detail an extensive history of

corporal punishment of Elena by both N.B. and B.S. Although Dr.

Finkel apparently did not discuss with Elena the discipline she

received on November 25, 2014, which precipitated this action,

the child reported that her mother hit her frequently with "[a]

belt or her hands" and that B.S. also hit the children using his

hands.

N.B. argues that "[a]fter agreeing with [N.B.'s] objection

to [the grandmother's] untrustworthy hearsay" and with "little

other credible evidence showing that [N.B.] had inflicted

excessive corporal punishment" on Elena in the documents the

Division submitted, the trial court's "decision to admit and

8 Although in his report, the doctor states, "I reviewed

[Elena's] past medical history," it appears from the context

that he reviewed Elena's medical history with her grandmother,

not that he reviewed the child's medical records. As to the

photographs, there are entries in the investigation summary

documenting the worker emailing copies of the photographs to Dr.

Finkel's office, but they post-date the doctor's report. In his

report, Dr. Finkel writes that "[i]f there are available images

that demonstrate acute signs of injury that reflect the use of

an object such as a hand or belt or any other implement, I would

be pleased to review such images."

16 A-5159-14T3

rely on the expert's conclusion of excessive corporal punishment

was a serious mistake." The Division counters that the invited

error doctrine precludes N.B. from arguing the court erred in

relying on the CARES report by failing to object to the

admission of the redacted report at trial. See N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010).

Under the circumstances, we cannot agree the doctrine of

invited error should apply here. The Division is certainly

correct that trial counsel did not make the argument the defense

does on appeal, that the report, based as it was on the

grandmother's "untrustworthy hearsay," should not have been

admitted under N.J.R.E. 803(c)(6) or 808. Trial counsel did,

however, argue for the hearsay redactions in the CARES report,

which led, ineluctably, to questions about the report's

reliability, which neither the parties nor the court addressed.

See N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super.

154, 174 (App. Div. 2012) (noting that "when the expert is not

produced as a witness, the rule [N.J.R.E. 808] requires the

exclusion of his or her expert opinion, even if contained in a

business record, unless the trial judge makes specific findings

regarding trustworthiness").

More to the point, in our view, is the Law Guardian's

comment acknowledging the concern we have expressed recently

17 A-5159-14T3

about fact finding hearings being conducted on the papers. See

N.J. Div. of Child Prot. & Permanency v. S.W. (In re Al. W.),

448 N.J. Super. 180, 182-83 (App. Div. 2017). In a footnote to

her brief, the Law Guardian stresses "that defendants often make

a strategic decision to agree that the matter be done on the

papers but then raise the issue on appeal."

We do not doubt such sandbagging occurs. We express no

opinion as to whether it occurred here. We note only that the

redactions to the expert's report should have alerted everyone

to the problem with its trustworthiness under N.J.R.E. 808 in

the absence of the doctor's testimony.

As we have already noted, because the doctor did not review

any records or see the photographs of Elena's injuries, his

report was based almost entirely on what Elena and her

grandmother told him. Elena's statements about being hit by her

mother and B.S. were corroborated in part by the history

provided by her grandmother. If the grandmother was an

unreliable reporter, the likelihood that the expert's opinion

was accurate and trustworthy was likely nil. Those

circumstances militated against admission of the expert report

without the expert appearing and being subject to cross-

examination to explain why he found the information provided to

18 A-5159-14T3

him to be the type on which he would ordinarily rely. See M.G.,

supra, 427 N.J. Super. at 173-75.

Defendants maintained Elena's grandmother was ill-motivated

by her dislike of N.B.'s boyfriend, B.S., and her desire to gain

custody of Elena. The grandmother presented herself as

motivated solely by N.B. and her children's best interests.

According to her, she and N.B. had been very close until N.B.

began seeing more of B.S. after he was released from jail. The

grandmother claimed B.S. cut off N.B. from friends and family

and restricted the grandmother's ability to speak with N.B.

alone. She also claimed that N.B. confided in her that B.S. was

abusive.

Whether the grandmother was well or badly motivated and

whether she was an accurate or inaccurate historian with regard

to Elena's care is obviously disputed and impossible to resolve

on this record. Resolution of that issue was important because

she provided the facts underpinning the expert's opinion, which,

because it was admitted without the expert testifying, could not

be tested through cross-examination. Even were the expert to

have testified, the court may well have needed to hear from the

grandmother herself to determine the weight to be accorded to

the expert's opinion.

19 A-5159-14T3

An abuse or neglect proceeding implicates a parent's

substantial rights. Thus "it is of great importance that the

evidence upon which judgment is based be as reliable as the

circumstances permit and that the answering parent be given the

fullest possible opportunity to test the reliability of the

[Division's] essential evidence by cross-examination." In re

Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969).

Because the photographs did not provide evidence of a per

se example of excessive corporal punishment, it was incumbent on

the court to identify and weigh the importance of all the

circumstances surrounding the discipline, see K.A., supra, 413

N.J. Super. at 511-12, especially in light of its conclusion

that N.B.'s actions were grossly negligent, see Dep't of

Children & Families, Div. of Youth & Family Servs. v. T.B., 207

N.J. 294, 309 (2011). While there was evidence in this record

to suggest that N.B. engaged in excessive corporal punishment of

Elena, without the testimony of live witnesses, the Division's

evidence, including its redacted expert report, was inadequate

to supply the court with the necessary information on which to

base a finding of abuse and neglect.

Accordingly, we vacate the order of March 3, 2015 and

remand for a testimonial fact finding hearing. The Division is

directed to remove defendant's name from the Child Abuse

20 A-5159-14T3

Registry within ten days of its receipt of this opinion. We do

not retain jurisdiction.

Vacated and remanded.

21 A-5159-14T3